Bush v. Nance

61 Miss. 237 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

On 17th of March, 1881, James Nance, a citizen of Lowndes County, Miss., was in Mobile, Ala., for the purpose of having a settlement with his commission merchants, Bush, Yates & Co., a commercial firm in that city, who were known to be in failing circumstances. The books of the firm were already in the hands of the sheriff of Mobile County, and- it was impossible to ascertain the exact state of the accounts; but knowing that James Nance would owe something, the firm requested him to pay whatever sum might be found due to his brother, Lewis M. Nance, to whom they were largely indebted and whom they desired to protect. This James Nance promised to do. One hour after this assent had been given and this agreement had been entered into, and before any knowledge of it had been communicated to Lewis M. Nance, a writ of garnishment was served in Mobile upon James Nance by T. G. Bush & Co., attaching creditors of Bush, Yates & Co.

The following day James Nance returned to Lowndes County, Miss., and was there on said day garnished by Lewis M. Nance, who resided there, and who had likewise sued out an attachment against Bush, Yates & Co. To this latter garnishment James Nance answered, detailing the agreement between himself and Bush, Yates & Co., narrating the service of the garnishment upon him in Mobile, stating the amount due by him at seven hundred and seventy-one dollars, which amount he paid into court, and asking that the parties might be compelled to interplead. T. G. Bush & Co. propounded their claim to the fund paid into "court, which they based upon their prior attachment and garnishment in Mobile, filing with their claim a duly authenticated transcript of the record from that State.

In response to their claim L. M. Nance pleaded, first, that as nonresidents of this State they could not interplead here; second, that the debt due by James Nance had been assigned to L. M. Nance by the agreement between the former and Bush, Yates & Co., previous to the attachment and garnishment of the suit of T. G. Bush & Co., in Mobile; third, that James Nance, at the time of said garnishment, was a citizen of Mississippi, transiently and temporarily in Alabama, having in his hands no property of Bush, Yates & Co., and owing them no debt pay able within said State, and was therefore not garnishable there.

To the first and second of these pleas demurrers were sustained by this court. Upon the third the claimants took issue, and the trial resulted in a verdict and judgment in favor of the attaching creditor, L. M. Nance, from which the claimants, T. G. Bush & Co., have appealed.

The rulings of the court in the demurrers are not before us arid cannot be considered, because those rulings were adverse to the plaintiffs in attachment, who had verdict and judgment despite the action of the court upon them, and therefore cannot assign error at all, and the claimants, who appeal cannot complain of them because the rulings upon them were in their favor. The single issue of fact submitted to the jury was whether James Nance owed to Bush, Yates & Co. a debt payable in Alabama, T. G. Bush & Co. asserting that he did; and L. M. Nance that he did not. It is conceded that if he did not, he was not subject to garnishment in that State, and that the writ served on him there was a nullity, and that this is the law seems settled by the authorities. The reason is that the court entertaining a'garnishment must have some jurisdiction, over the thing garnished, and where the garnishee is a non-resident, has in his hands no property belonging to the principal debtor, and owes him nothing payable within the State, the jurisdiction is defeated. Such is the well-settled law. Drake on Attachment (5th Ed.), §§ 474-5, and cases cited.

It is equally well settled that where advances are made by a commission merchant who is in the habit of receiving from and selling goods for a customer resident in another State, any balance of accounts due such merchant is payable where he resides and not at the home of the consignor. This results from the reasonable presumption springing from the nature of the business, it being contemplated that all advances shall be met by consignments made or to be made, and the business implying in its very nature that the consignments are to be forwarded to the place where they are to be sold. Any balance that may remain must be considered as payable there, unless there be between the parties an express contract to the contrary-; and to this effect are all the authorities. ,

There was no proof in the case at bar to suggest that there was any contract, agreement, or understanding to vary the well-settled law in this regard. Indeed, every witness who testified in relation to the matter stated that-nothing had ever been said on the subject between James Nance and Bush, Yates & Co.

• James Nance, indeed, testified that when the merchants first sought his business they wrote him “ that he could do business on his own terms,” but he does not pretend that he ever claimed that balances due by him were payable in Mississippi, and he states that he paid exchange on all sums remitted to him,- thereby conceding that the advances were considered as paid to him at-Mobile; and he expressly declares that no agreement was ever made varying the general law as to the place of re-payment. The verdict on the sole issue joined was therefore entirely without evidence to support it and should have been set aside. It may, perhaps, in some degree have been produced or influenced by an erroneous phrase in the eighth charge given by the court for the plaintiff, to 'which charge the claimant excepted.

Referring to the testimony of James Nance, that Bush, Yates & Co. liad promised that “ he might do business on his own terms,” the court added the words, “ and pay where he pleased.”

The added words had not been used by the witness, nor were they inferrable from the words actually used in the absence of anything to indicate that the words actually used were so intended or so understood by the parties at the time. The charge was to this extent erroneous.

Counsel for appellee contends with great earnestness that Lewis M. Nance acquired a perfect title to the money in controversy by the assignment of the debt due by James Nance to Bush, Yates & Co., effected by virtue of what passed between these parties before the garnishment in Mobile.

This question cannot be considered for two reasons, first, because the court below held otherwise, and an appellee without a cross-appeal cannot in this court assail the actions or rulings of the court below, and, second, because the appellee could not in this proceeding have assumed such position even in the lower court. This is an attachment suit and garnishment instituted by him.

The very foundation of this action is that this money belongs to Bush, Yates & Co., non-resident defendants, whom he seeks to reach by garnishing a debt due them. If that debt had ceased to belong to them and had become his property by assignment before the suing out of this attachment, they are not in court, and neither the circuit court nor we ourselves have any jurisdiction.

Judgment reversed, and cause remanded for new trial.